JULIAN v. SIRISENA COORAY , MINISTER OF NATIONAL HOUSING AND CONSTRUCTION AN

026-SLLR-SLLR-1993-1-JULIAN-v.-SIRISENA-COORAY-MINISTER-OF-NATIONAL-HOUSING-AND-CONSTRUCTION-AN.pdf


238
Sri Lanka Law Reports
[1993] ISriLR.
JULIAN,
v.SIRISENA COORAY, MINISTER OF NATIONAL HOUSING ANDCONSTRUCTION AND OTHERS
SUPREME COURT.
KULATUNGA, J., RAMANATHAN, J.. ANDGOONEWARDENA, J.,
CA APPLICATION NO. 424/91.
SC APPEAL NO. 79/92.
MARCH 16th, 1993.
Ceiling on Housing Property – Tenant's right to purchase – Ceiling on HousingProperty Law, No. 1 of 1973 sections 13 and 17 – Ceiling on Housing Property(Special Provisions) Act No. 4 of 1988, sections 3 and 4.
The appellant was the tenant of premises No. 54, Cripps Road, Galle, underone Samad. On 16.02.73 the appellant applied to purchase the house. However,on 09.02.73 Samad had gifted the house to the 8th respondent. On 26.04.76the 2nd respondent (Commissioner for National Housing) rejected the appellant'sapplication on the ground that the owner (8th respondent) had withheld consentto the sale under the proviso to section 13 of the Ceiling on Housing PropertyLaw. On appeal, under section 39 of the Law the Board of Review by its orderdated 02.11.78 held that the owner (8th respondent) was not a person entitledto withhold his consent and set aside the order of the 2nd respondent and directedthat the tenant be permitted to purchase the house, if the other requirementsare in order. An application by the 8th respondent to have the order quashedby Certiorari was dismissed. The 8th respondent filed a suit for declaration of .title and ejectment in respect of the premises in dispute against the appellantin DC Galle and this suit too was dismissed.
In the meantime the 2nd respondent held an inquiry into the appellant's applicationas directed by the Board of Review ; and although all the preconditions of section17 of the Law were satisfied, the 2nd respondent recommended that the “ equitiesare more in favour of the landlord than the tenant ". Consequently the 1strespondent Minister decided not to vest the house and the 2nd respondentinformed the appellant that the house would not be vested. The appellant believingthat this was the decision of the 2nd respondent appealed to the Board of Review.
On 21.02.90 the 2nd respondent clarified to the appellant that the decision wasthe Minister's. In the meantime on 26.01.90 the appellant had also appealed tothe Minister to reconsider his decision. This was replied by the 2nd respondentto the effect that no further action could be taken in the matter. On 15.10.90the Board of Review made order dismissing the appellant's appeal on the groundthat it had no jurisdiction to quash a decision of the Minister.
On 23.05.91 the appellant applied for Certiorari and Mandamus for quashingthe decisions of the Board of Review and the 1st and 2nd respondents and tocompel a sale of the house to the appellant.
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Held :
Before the 2nd respondent made his recommendation to the 1st respondentagainst the vesting of the house, he should have communicated his decisionagainst the vesting to the appellant. Failure to do this vitiates the decision madeby the 1st respondent to reject the appellant's application.
In the absence of a cross appeal against the judgment of the Court of Appeal,the 8th respondent would have to pursue his claim, if any, afresh before theBoard of Review, at the appropriate time.
Case referred to :
Caderamanpulle v. Keuneman SC Appeal No. 15/79 SCM of 19.09.1980.APPEAL from judgment of the Court of Appeal.
Petitioner in person.
K. Siripavan SSC for 1st and 2nd respondents.
M. Farook Thakur with M. Z. M. Hilamy for 8th respondent.
Cur. adv. vult.
May 13, 1993.
KULATUNGA, J.
In this appeal, the appellant being the tenant of premises No. 54,’ Crips Road, Galle, seeks reliefs from this Court to enable him topurchase the said premises in terms of the provisions of s. 13 readwith s. 17 of the Ceiling on Housing Property Law No. 1 of 1973.S. 3 of the Ceiling on Housing Property (Special Provisions) Act No.4 of 1988 removed the right of a tenant to purchase a house underthe said provisions from, or after 01.01.87 but s. 4 expresslypreserved the right in proceedings which had been commencedunder the principal enactment and pending or incompleted on 01.01.87and provides that such proceedings may be carried on and completedas if the principal enactment had not been amended by the said Act.
The appellant first became a tenant of this house on 01.01.58.His landlord was one Sameem until November, 1970 when thehouse was sold to one Samad and others after which the appellantaccepted the said Samad as the landlord. On 16.02.73 he appliedunder s. 13 to purchase the house. However, on 09.02.73 Samadhad by deed No. 1530 dated 09.02.73, gifted the house to the
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8th respondent. Consequently, the 8th respondent was made aparty to the proceedings before the Commissioner for NationalHousing (the 2nd respondent) at the inquiry held into the appellant'sapplication on 25.03.76. Thereafter, the 2nd respondent by his letterdated 26.04.76 (P1) addressed to the appellant, rejected his appli-cation on the ground that the owner had withheld consent to the saleof the house under the proviso to s. 13. On an appeal by the appellantunder s. 39 of the Law, the Board of Review, by its order dated02.11.78 (P2), held that the owner (the 8th respondent) is not aperson entitled to withhold his consent to the proposed sale, set asidethe 2nd respondent's determination (P1) and directed that the tenantbe permitted to purchase the house, if the other requirements arein order. An application by the 8th respondent to have the said orderquashed by way of Certiorari was dismissed by the Court of Appeal,by its judgment dated 28.06.85 (P3). The 8th respondent also suedthe appellant in DC Galle case No. 11272 for a declaration of titleand ejectment. That action was dismissed by the District Court byits judgment dated 19.01.90 (P4).
In the meantime, on 17.08.88 the 2nd respondent held an inquiryinto the appellant's application as directed by the decision of the Boardof Review and made his recommendation to the Minister (the 1strespondent) to enable the 1st respondent to make his decision interms of S. 17 of the law as to whether the house may be vested #in the 2nd respondent for the purpose of sale to the appellant. Thesaid recommendation dated 06.12.89 (vide minutes sheet No. XVIIin the file maintained by the department) shows that all thepre-conditions set out in s. 17 for a vesting of the house are satisfied,but the 2nd respondent states that he does not recommend a vestingfor the reason that" equities are more in favour of the landlord thanthe tenant “. Consequently, the 1st respondent by his order dated
(appearing on the minutes sheet No. XVIII in the file) decidednot to vest the house ; and the 2nd respondent by his letter dated
(P6) informed the appellant that it has been decided to rejecthis application. P6 does not state that the decision against the vestinghad been made by the 1st respondent. Whereupon on 17.01.90 theappellant appealed to the Board of Review against the said decisionon the assumption that it was a determination of the 2nd respondent.
In view of this, the 2nd respondent by his letter dated 21.02.90 (P7),addressed to the appellant, clarified that the appellant's applicationhad been rejected by the 1st respondent. On 26.01.90, the appellant
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appealed to the 1st respondent to reconsider his decision. This wasreplied by the 2nd respondent by his letter dated 21.02.90 (P9)stating that no further action can be taken in the matter.
On 15.10.90 the Board of Review made its order (P9) dismissingthe appellant's appeal holding that it had no jurisdiction to quash adecision of the 1st respondent and to direct the 2nd respondent tosell the house to the appellant. The Board so decided presumablyfor the reason that s. 39 of the law provided an appeal to the Boardagainst a decision or determination of the Commissioner and theBoard had been informed that the appeal before the Board was infact in respect of a decision of the Minister; whereupon on 23.05.91the appellant made an application to the Court of Appeal (p10) inwhich he sought the following reliefs
(а)a Writ of Certiorari quashing the order of the Board of Reviewdated 15.10.90 ;
(б) a Writ of Certiorari quashing the decision of the 2ndrespondent dated 03.01.91 ;
a Writ of Certiorari quashing the decision of the 1strespondent communicated by the letter dated 22.01.90 ;
a Writ of Mandamus directing the 1st and the 2ndrespondents to take immediate action to sell the house tothe appellant giving effect to the previous decisions of theBoard of Review dated 02.11.78 and the judgment of theCourt of Appeal dated 28.06.85.
The Court of Appeal accepted the submission that the appellant'sappeal to the Board of Review was in respect of determinationsmade by the 2nd respondent and not against a decision of the 1 strespondent and accordingly quashed the order of the Board ofReview dated 15.10.90. However, the Court did not grant any of thereliefs referred to at (b), (c) and (a) above.
The appellant is aggrieved by the failure of the Court ofAppeal to grant the several reliefs as prayed for by him. Theappellant submits :
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that unless the communication of the 2nd respondent againsta vesting of the house and the decision of the 1st respondentnot to vest the house are also quashed, it would notbe possible to effectively prosecute his claim before the Boardof Review on its merits ;
that the order of the Board of Review dated 02.11.78affirmed by the Court of Appeal judgment dated 28.06.85constitutes an enforceable directive to vest the house and to sellit to the appellant, binding on the 1 st and 2nd respondents ; andhence the Court of Appeal should have directed such sale ; andthat in the circumstances he is entitled to obtain such a directionfrom this Court.
During the argument before us, the learned Senior State Counselrepresenting the 1st and the 2nd respondents brought to our noticethe fact that before the 2nd respondent made his recommendationto the 1st respondent against the vesting of the house, the 2ndrespondent had failed to communicate to the appellant his decisionagainst the appellant's application to purchase the house. TheCounsel conceded that in the light of the decision in Caderamanpullev. Keuneman <’> such failure vitiates the decision made by the 1strespondent to reject the appellant's application. In the circumstances,he agreed to a quashing of the impugned communication by the2nd respondent and the decision of the 1st respondent. As regards ..the prayer for a direction to sell the house to the appellant relyingon the previous order of the Board of Review, Counsel submittedthat the said order (affirmed by the Court of Appeal) only declaresthat the appellant is eligible to make an application to purchase thehouse and that it cannot be construed as a direction to effect a sale.
The learned Counsel for the 8th respondent submitted that theorder of the Board of Review dated 15.10.90 is correct. However,in the absence of a cross-appeal against the judgment of the Courtof Appeal I am unable to entertain this submission. The 8threspondent would have to pursue his claim, if any, afresh before theBoard at the appropriate time. I
I am in agreement with the submission made by the Senior StateCounsel. Accordingly, I allow the appeal and grant (in addition to therelief already granted by the Court below) a Writ of Certiorari quashing
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Contempt of Court
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the order of the 2nd respondent contained in his letter dated 03.01.90and a Writ of Cetiorari quashing the order of the 1st respondentcommunicated by the 2nd respondent’s letter dated 22.01.90.1 furtherdirect the 2nd respondent to communicate to the appellant the decisiondated 06.12.89 (appearing on the minutes sheet No. XVII in thedepartmental file) to enable the appellant to prefer an appeal to theBoard of Review in terms of s. 39 of the law, if he so desires. Theappellant is also granted costs in a sum of Rupees seven hundredand fifty (Rs. 750) payable by the 2nd respondent.
RAMANATHAN, J. – I agree.
GOONEWARDENE, J. – I agree.
Appeal allowed.